War Horse is a theatrical experience of epic proportions. For copyright enthusiasts, it also epitomises successful exploitation of a literary work. The novel, written by Michael Morpurgo, was the basis for (what was to become) one of the most successful plays ever produced by the National Theatre. The novel has also spawned a DreamWorks film directed by Steven Spielberg. Although the National Theatre did not buy the screen rights to the book, as these had already been sold by Morpurgohe, the film adaptation used material from the play giving the National Theatre a healthy stake in the film as well.
Central to the play is its musical score composed by Adrian Sutton, who describes it as an “orchestral epic.” Without a full orchestra, a recorded soundtrack is used through the performance. Between March 2009 and March 2013, this recorded soundtrack was accompanied by a team of five musicians playing wind instruments live every night. This was mostly done from a ‘band room’ in the theatre, from where this live performance aspect was conveyed electronically to the auditorium. In all, the musicians spent about 2-3 minutes actually on stage playing their instruments.
The National Theatre questioned what these musicians brought to the production. They believed that a live band did not provide “the same quality and impact of performance as can be produced through the use of recorded music and professional actors.” From March 2013, the roles of these musicians were reduced to 15 minutes in one short scene. All of what they previously had been playing was replaced by a recorded equivalent. In the long term, the National Theatre wanted to replace the role of the musicians entirely by way of recorded soundtrack, as had been done in other productions of War Horse (including the one on Broadway).
The Claimants : Neyire Ashworth, Andrew Callard, Jonathan Eddie, David Holt, and Colin Rae
These were the five musicians who had been performing in the West End production of War Horse for a period of five years before their contract was terminated by the National Theatre. They were given letters on the 4 March 2014 notifying them that their contracts would come to an end on 15 March 2014.
The Defendants: The National Theatre
The National Theatre was described in the judgment as requiring “no introduction.” However, as a production company it has been seeing some major success over recent years. In the 2012-13 financial year, the National Theatre saw its income reach a record breaking £87 million. This is despite there being a 4.4% cut in their Arts Council grant. This is, in no small part, down to the success of the West End transfer of War Horse which had brought in a reported £15.1 million in that same year.
The Union: The Musicians’ Union
The Musicians’ Union was founded 120 years ago to improve the pay and working conditions of musicians. It also has theatre musicians among its members and fights for certain contractual protections for these members specifically. One way of achieving this has been through its collective agreements with the Society of London Theatres (of which the National Theatre is a member). Terms of this agreement are often incorporated into their standard form contracts, and other contracts agreed between theatre managers and musicians.
The Evolution of the Theatre Musician’s Contract
Standard form contracts written up by the Society of London Theatres and the Musicians’ Union (SOLT/MU) have remained materially the same in their approach to termination since 2003. These contracts are usually used as the starting point when negotiations take place between theatre producers and musicians. Any changes that have come about to these standard form contracts usually reflect industry practice. This is what makes changes in the notice requirements for terminating a musician’s engagement for a theatrical production particularly interesting. As Assistant General of the Musicians’ Union, Horace Trubridge, noted when looking over the personnel files;
[there has been] no case where a SOLT producer has terminated a musician’s contract, without the musician’s agreement, for any reason other than illness or old age, disciplinary action or the closure of the production.
That is, until now. What makes this case particularly difficult for the National Theatre can be demonstrated by looking at how the contracts between theatre producers and musicians have evolved over time:
Pre-2003: Producers could give a musician appropriate notice (normally agreed between the parties) at any time during the run of a production (providing it was not a disciplinary matter).
The War Horse Agreement (2009): This was based on the 2007 standard form SOLT/MU contract. It stated that (provided the termination was not a disciplinary matter) either:
- the Musician could give the National Theatre on any Saturday two weeks’ notice in writing to terminate engagement; or,
- the National Theatre could give the Musician on any Saturday two weeks’ notice in writing of the closure of the production; or,
- the National Theatre could give the Musician between two to twelve weeks notice (this depends on how long the musician had been engaged) as long as the notice was given within 26 weeks of Press Night (the ‘probationary period’).
Another clause in these contracts permits a producer to terminate the engagement if the production is moving to a smaller theatre, requiring a reduction in the size of the band. However, in this case, War Horse was not planning to leave its New London Theatre home. Under this post-2003 approach, if a production was not closing (which War Horse was definitely not) and the production’s run was outside the probationary period of 6 months after Press Night, then only the musicians could give notice to terminate their engagement.
It seems that, under these terms, producers do not have a great deal of freedom as to when they can dismiss their musicians. Attempts by the National Theatre to imply terms which would allow them to dismiss the musicians more easily failed to convince Mr Justice Cranston. He noted the absurdity of implying a term where the contract would end where the purpose of the engagement (playing the live music) was no longer present, as this would allow a producer to abolish an orchestra overnight without needing to comply with any notice requirements. Furthermore, implying that a change in cast and staging was tantamount to ‘closure’ was similarly dismissed. The fact is, where there might be a ‘creative decision’ that requires dismissing musicians for the sake of the production; the producer should put this event as an express term that triggers their right to terminate the musician’s engagement on notice. This is one of the main lessons to come out of the War Horse case.
Mr Justice Cranston concluded that the prospect of success at trial for breach of contract was strong. However, this case was not a full hearing on the breach of contract claim. This was an application for a mandatory injunction or specific performance to reinstate the musicians in the production until the full trial takes place. This interim remedy was not granted.
Give Me My Job Back: A Remedy
To succeed in obtaining this kind of interim relief, the test which has to be satisfied is that set out in American Cyanamid Co v Ethicon Ltd  AC 396:
- Is there a serious question to be tried with a real prospect that the claimants will obtain specific performance/full injunction at trial?
- Are damages not an adequate remedy in the interim?
- Where does the balance of convenience lie?
These should be considered in turn.
Serious Question To Be Tried
As explained above, Mr Justice Cranston believed there was a strong case for breach of contract (see paragraph 15 of the judgment).
Real Prospect That Relief Would Be Granted At Trial
Mr Justice Cranston could not find that there was a real prospect that the claimants would obtain specific performance or a full injunction at trial. As he observed;
[A] court will not order specific performance of a contract calling for personal service where trust and confidence has broken down, a continued relationship is unworkable for some other reason or constant supervision might be required.
As the relationship was in the nature of an employee/employer one, it made it much more difficult to justify specific performance. As had been observed in Chappell v Times Newspapers Ltd  1 WLR 482 by Geoffrey Lane LJ “if one party has no faith in the honesty or integrity or the loyalty of the other, to force him to serve or to employ that other is a plain recipe for disaster.” Although the musicians’ professionalism was not in question, there were some unavoidable observations to be made:
- Loss of Confidence: Mr Justice Cranston noted that the theatrical workplace is not the equivalent of an impersonal organisation which might have little difficulty reinstating an employee. The production process is highly collaborative, it “entails close co-operation between all those involved.” Including co-operation between the producers and performers. This co-operation will be hindered by the fact that the producers have made it quite clear the play is better off without those performers. The National Theatre had clearly lost confidence in the musicians, and this would inevitably affect the musicians.
- Practical Difficulty Of Reinstatement: In March 2014, the War Horse production underwent some major changes. Half the cast changed, the cast increase to 36 actors, and this new cast went through seven weeks of rehearsals without live music as a consideration. The movement and placement of the actors changed to reflect the absence of the musicians on stage, and the lighting changed to reflect this also. There was clearly going to be significant practical difficulties involved in reinstating the live band, and this would be at the expense of the National Theatre.
- Right To Free Artistic Expression: One of the most interesting aspects of this case was the treatment of Article 10 of the ECHR in deciding whether to grant interim relief to re-engage a performer under these circumstances. It was decided by Mr Justice Cranston that the relief, if granted, would have an adverse effect on the decisions made by the producers (and directors) on how they wanted to stage the play. These decisions are protected by Article 10 as artistic freedom, which forms part of their freedom of expression. Pursuant to section 12 of the Human Rights Act 1998, the court had to take into consideration the importance of the right to make such decisions freely when considering whether to grant relief. Rather harshly, the musicians’ freedom of expression was deemed not to be curtailed because they were still able to play their instruments as-and-when they wished (just not in War Horse). The court clearly wants to stay away from ordering a producer how to put on a play, and telling them who should be performing in it.
This part of the test looks at whether damages are an adequate remedy for the interim period if the wrong decision was made at the interim hearing. For example, if the specific performance was not granted at the interim hearing, but was granted at full trial, would damages sufficiently compensate the claimants for not getting the interim order when it should have been granted?
- Injustice: The court does not just look at whether the loss suffered by a party in the interim period is quantifiable in damages. It also looks at whether the specific performance is a more just remedy compared to damages. It was argued by the claimants that if the relief is refused at this stage, it will be much more difficult to obtain the remedy at a full trial because the new changes will have been embedded over a period of time. Furthermore, the claimants may have found other work in the interim period, making reinstatement difficult as well. However, Mr Justice Cranston decided that there was little practical difference in re-engaging the performers now and re-engaging them a few months down the line. The changes to the production had already taken place in March, so the same changes had to be made regardless.
- Losses Unobtainable: It was argued by the claimants that loss of security, interest, and pride that goes with performing in a West End show were not losses that could be compensated by damages under the law of contract. This would make injunctive relief a more appropriate remedy. However, the court accepted the submission made by the National Theatre that little kudos goes with being in a West End production where your role is publicly not supported by the creative team.
- Quantifying Damages: This goes to the difficulty in quantifying damages because it is not possible to know how long the musicians engagement would have lasted, and how long the production would have ran. This makes quantifying financial loss difficult. This was not seen as a problem by Mr Justice Cranston who noted that judges are used to quantifying damages in complex cases, even cases more complex than this one.
The court held that damages would be an adequate remedy in these circumstances.
Balance of Convenience
Mr Justice Cranston found, in his assessment of where the balance of convenience lay, that not granting injunctive relief now was the least injust situation if the decision turned out to be wrong. In coming to this conclusion he considered two factors;
- Unwinding the Production: The interim relief sought would involve forcing the creative team to reverse changes already made. This would involve more than minimal rehearsals, and force them to work with a band whose role they did not see as valuable to the production. If the relief was then discontinued after a full hearing, then the National Theatre could not be adequately compensated in damages for this unwinding that had taken place in the interim period. Furthermore, unwinding now would be no less difficult than unwinding a few months done the line.
- Article 10: Special regard was given to the National Theatre’s artistic freedom as outlined above. This tilted the balance against reinstating the musicians.
This case will most likely make theatre producers think twice about the termination provisions they put into the contracts they have with the musicians they work with. Regardless, the case was a bad result for the War Horse musicians who were ready to get back to work. With significant weight placed on Article 10 in this case, it is not easy to envisage a producer being forced by court order to re-employ a performer dismissed in breach of contract.
Nonetheless, the band is considering advice on whether to appeal and the Musicians’ Union has pledged to continue its fight on behalf of the musicians. Also, Mr Justice Cranston made it quite clear that the claim for breach of contract is a strong one and is most likely to go to full trial. Therefore, this decision simply amounts to the end of Act I in what looks set to be a very intriguing drama.